Topic

Table of contents

Introduction

At 3.0% of GDP, public spending on families in Austria is above the OECD average of 2.6% (data pertain to 2009; OECD Family database 2013). Out of all public spending on families in Austria, cash benefits paid to families account for the largest share by far, while spending on services and tax measures is much more modest. Allowances and other forms of support are coordinated by the Federal Ministry for Families and Youth. The first family ministry was established 30 years ago in 1983 (Schipfer 2013). In addition, the Austrian federal states (Bundesländer) have adopted their own laws on family support and fund allowances from their budgets.

Since support to families is based on financial benefits rather than on services, childcare is largely provided within families, and particularly by mothers. Family policies thus foster a modernised male breadwinner model in which mothers work part-time (Berghammer 2014). Rates of part-time work in Austria have increased substantially in recent decades: e.g., 71% of employed mothers aged 25 to 49 with children below age 15 worked part-time in 2012 (Baierl and Kapella 2014). In 2004, the right to work part-time (under certain conditions) until the child’s seventh birthday was introduced. At 68%, the employment rate of women is higher in Austria than the OECD average of 57% (data pertain to 2013, age group 15-64; OECD 2014). However, in Austria women still perform almost twice as many hours of unpaid work—i.e., care work and housework—as men (data pertain to 2008/09; Ghassemi and Kronsteiner-Mann 2009). Despite generous benefits for families, the total fertility rate in Austria has been at a low level of around 1.4 since the mid-1980s, and was 1.44 in 2013.

Leave policies may incentivise parents to take a comparatively long employment break after childbirth. The job-protected leave period (Elternkarenz) lasts until the child’s second birthday. The duration of the payment of childcare allowance (Kinderbetreuungsgeld) is, however, independent of this period, and parents can choose from five different models (Blum 2012a). The longest and most popular model, which provides 30 months of leave for one parent (plus six additional months if both parents share the leave), was enacted in 2002 under a conservative government. Restrictions related to former employment were also abolished at that time. In 2008 and 2010 four shorter options ranging from 12 (+2) to 20 (+4) months were introduced; one of them is income dependent. Fathers have so far been rather reluctant to take leave: in 2012, only 4% of recipients of childcare allowance were men (Statistics Austria 2014a). While receiving childcare allowance payments, parents may be active on the labour market up to a certain threshold.

The demand for childcare places for three- to five-year-olds is largely met in Austria. But there are still too few places for zero- to two-year-olds, despite recent efforts to increase the number of places available (Statistics Austria 2014b). The fact that formal childcare providers have limited opening hours and long breaks during the holiday season adds to the challenges.

Childcare provision

Childcare places for children aged three to five are now widely available: 91% of children were enrolled in formal care in 2013 (Statistics Austria 2014b), up from 50% in 1980 and 71% in 1995 (Blum 2012a). However, the childcare providers’ limited opening hours and long breaks during the holiday season pose obstacles for parents. Only one-third of all childcare places for three- to five-year-olds met the needs of parents in full-time work in 2007 (Festl et al. 2009). Across Austria, the average childcare group size in this age range is 20 children, with each group having an average of one teacher and 0.5 to one auxiliary staff member (Baierl and Kaindl 2011). Compared to other OECD countries, this child-to-staff ratio is not favourable (OECD Family database 2010).

Although efforts have been made to improve the childcare infrastructure for children under age three, there are still too few places to meet demand. In 2013, 23% of children in the age group zero to two were enrolled in formal care. This is a clear increase from less than 5% during the mid-1990s (Statistics Austria 2014b). The shares of children enrolled in childcare differ considerably between the federal states (Bundesländer), especially for children under age three: i.e., from 12%-13% in Styria and Upper Austria to 40% in Vienna (Statistics Austria 2014b). Across Austria, the average childcare group size for children in this age range is 14 children, with one teacher and 0.5 to one auxiliary staff (Baierl and Kaindl 2011). Childcare costs vary by federal state, and may depend on the family’s income as well as on the amount of time the child spends in childcare.

Responsibility for the childcare system lies with the Bundesländer. Regulations vary on opening hours, wages, parents’ costs, child-to-staff ratios, and group size. The expansion of the childcare infrastructure is co-financed by the federal government. The qualification of teachers is organised on the national level. Teachers are trained in five-year vocational secondary schools. Less than 1% of childcare teachers are men (OECD Family database 2010).

Since 2010, there has been a requirement that children attend kindergarten during the mornings in the year before they enter primary school; i.e., at around age five. This year of kindergarten is free of charge. There is no entitlement to a childcare place before age five.

In addition to attending institutional childcare centres, the children of working parents may be cared for by child-minders (Tagesmütter), who are responsible for four to five children (Baierl and Kaindl 2011). In 2012, 9% of children aged zero to two in some form of non-family childcare were cared for by a child-minder, while 91% were attending an institutional childcare facility (crèche, kindergarten, or group of heterogeneous ages; Statistics Austria 2013).

Children of school age are cared for privately, in all-day schools or in after-school care (Hort). There are no comparable data for all-day schools. In 2013, 17% of children were enrolled in after-school care (Statistics Austria 2014b).

Institutional childcare services (crèche, kindergarten, groups of heterogeneous age, and after-school care) may be public or private: 59% of these institutions are public, and are mainly operated by municipalities; while 41% are private, and are operated by private associations (25%), churches (11%), or others (4%; Statistics Austria 2014b).

Parental leave (including maternity protection)

Maternity leave starts eight weeks before the (expected) date of delivery and ends eight weeks after birth. During this period, paid work is prohibited. In special cases—e.g., after a caesarean—maternity leave is extended to 12 weeks after birth. Each month during maternity leave, employed women receive an average monthly wage (calculated as the mean of their wages in the three months before maternity leave). Many employees in Austria receive not 12, but 13 or 14 monthly wages per year, and these employees also receive a proportional supplement. This maternity allowance is paid by the health insurance (Chamber of Labour 2013b). Self-employed women and farmers are assigned a business assistant (Betriebshilfe, i.e., a person who replaces them at their workplace), or receive a payment of approximately 1,500 euros per month.

Immediately after maternity leave, the job-protected parental leave period (Elternkarenz) starts and runs until the child’s second birthday. During this period, the parent is entitled to return to her/his employer (Chamber of Labour 2013a).

Parents can choose between five different models of childcare allowance (Chamber of Labour 2014a). In all of the models, some months are reserved for the parent who is not the main caregiver (usually the father), and are lost if not taken. In the longest (and most popular) model, the parent receives a fixed amount of around 436 euros/month for 30 (plus six for the second parent) months. In the second model, the parent receives around 624 euros/month for 20 (plus four for the second parent ) months. In the third model, the parent receives around 800 euros/month for 15 (plus three for the second parent) months. In the fourth model, the parent receives 1,000 euros/month for 12 (plus two for the second parent) months. In the fifth model, the parent is income-dependent, and receives 80% of the maternity allowance (a maximum of around 2,000 euros/month) for 12 (plus two for the second parent ) months. The four models with flat rate payments are available to all parents, including parents of adopted or foster children, independent of their previous employment status. Thus, students and homemakers are qualified to receive these payments. The length of time the parent receives the childcare allowance (Kinderbetreuungsgeld) is independent of the length of his or her parental leave. For example, a parent may return to work when the child is 18 months old, but receive benefits for only 12 months (or vice versa, provided she/he does not exceed a certain earnings threshold). The five models are taken up at different rates: In 2012, 46% of parents opted for the first model, 26% chose the second model, 6% chose the third model, 5% selected the fourth model, and 17% chose the fifth model (Blum 2012b). Up to a certain threshold (which varies by model), parents are permitted to be in paid employment while receiving childcare allowance. A caregiving parent can continue to accrue retirement benefit credits for a maximum of four years per child. The childcare allowance is paid from the family burdens equalisation fund (Familienlastenausgleichsfonds), which is financed by employers’ contributions for their employees.

Since 1990, fathers are entitled to parental leave. In 2012, only 4.3% of recipients of childcare allowance were men (Statistics Austria 2014a). However, 17.0% of fathers whose children were born in 2010 received childcare allowance payments (Federal Ministry for Family and Youth 2014). The difference between these two numbers results from the fact that fathers tend to take shorter periods of paid leave than mothers.

Family allowances

Austria’s public spending on families is above the OECD average, and a disproportionally large share of this spending is allocated to cash benefits, rather than to tax measures and services (OECD Family database 2013). In 2011, 3.0% of GDP was spent on families; of this amount, 72% consisted of direct monetary transfers (Schratzenstaller 2014).

The largest direct monetary measures are the family allowance (Familienbeihilfe) and the tax credit for children (Kinderabsetzbetrag) (Statistics Austria 2014c).

The family allowance is granted to parents with children living in the household. It is paid independent of the parents’ employment status or income level until the child’s 18th birthday. If the child is enrolled in school/university or in training for an occupation, the payment is extended until age 24 (or age 25 under certain conditions).

The family allowance varies by the ages and the number of children in the household. Since September 2014 the allowance has been paid monthly; before that it was paid bi-monthly. Monthly benefits are about 110 euros from birth, 117 euros from age three, 136 euros from age 10, and 159 euros from age 19 onwards. Additional benefits are granted to families with more than one child: 14 euros for two children, 50 euros for three children, 102 euros for four children, and more for more children. Parents receive an additional 150 euros per month for a disabled child. The tax credit for children is a universal benefit amounting to 58 euros/month per child, and is paid together with the family allowance.

Families may be entitled to receive other direct supports, such as an allowance of 100 euros at the beginning of each school year (Federal Ministry of Labour, Social Affairs and Consumer Protection 2014), free schoolbooks, or free transportation to school.

The two most important tax measures are the sole earner tax credit (Alleinverdienerabsetzbetrag) and the single parent tax credit (Alleinerzieherabsetzbetrag) (Schratzenstaller 2014).

The sole earner tax credit applies to families with children if the spouse or partner does not earn more than 6,000 euros in a calendar year. The yearly wage tax is then reduced by 494 euros for one child, 669 euros for two children, and an additional 220 euros for each further child (Chamber of Labour 2014b).

The single-parent tax credit applies to parents who do not have a partner living in the same household. The amounts correspond to those of the sole earner tax credit.

Other tax measures are (a) the tax credit for maintenance payments (Unterhaltsabsetzbetrag), (b) the tax-exempt amount for children (Kinderfreibetrag), (c) the multiple child bonus (Mehrkindzuschlag), and (d) the deduction of childcare costs (Chamber of Labour 2014b).

In addition, there are measures on the federal and the regional (i.e., Bundesländer) level which are specifically geared towards low-income families or unemployed parents (Federal Ministry of Labour, Social Affairs and Consumer Protection 2014); including (a) compensation for families in distress (“Familienhärteausgleich”), (b) a childcare subsidy to cover a portion of childcare costs (Kinderbetreuungsbeihilfe), and (c) a family supplement (Familienzuschlag).

Marriage

The main laws that regulate marriage in Austria are the German Civil Rights Act (Allgemeines Bürgerliches Gesetzbuch; ABGB) and the German Matrimonial Act (Ehe-Gesetz) of 1938 (when Austria was taken over by the Deutsches Reich). The matrimonial law permitted for the first time marriage between spouses belonging to different religious denominations. It was based on the pure male breadwinner model: i.e., the husband was expected to earn money to support the family, while the wife was expected to look after the household and the family. In response to major societal changes, this law was amended in 1975 to reflect the principle of partnership; i.e., that the spouses are equal and have the same rights and duties.

Minimum age requirements and further restrictions: Until 1999, an adult man (aged 19+ in 1999) was entitled to marry a woman aged 16+. If one of the marriage partners had not yet reached adulthood, the court could declare him or her to be an adult, and thus to be entitled to marry. In some cases, the courts reduced these age limits to 18 for men and 15 for women. These age requirements were made gender-neutral in 2001: since then, all individuals aged 18+ can marry. If one of the partners is aged 18+ and the other is aged 16 or 17, the court can declare the underage partner to be prepared for marriage (EheG §§ 1 – 3 ).

Some marriages are prohibited, including unions involving first- and second-grade relatives, adoptive parents and their adopted children or of their offspring, and individuals with profound mental disabilities (i.e., individuals who have not reached adulthood due to their handicap) (EheG §6, §10).

Same-sex unions: Austria is currently in the process of undergoing a two-step procedure to grant same-sex couples the same rights as heterosexual couples: (1) the reduction and the elimination of discrimination of same-sex oriented persons, and (2) the entitlement to marriage.

Austria started to provide rights for same-sex unions in 1998 in some fields of law. From this year onwards, for instance, same-sex partners were entitled to refuse to testify against each other in criminal proceedings. In 2002 same-sex partners were given the right to joint private ownership of residential apartments and houses, and in 2003 same-sex couples who have been cohabiting for at least three years were guaranteed the right to continue the rental contract if the partner who held the contract died. In 2004 equal treatment in all areas of labour legislation was established for same-sex couples. The elimination of discrimination in other areas of law followed, while rights in some other areas (like discrimination in the housing market) are still being negotiated.

So-called “registered partnerships” for same-sex couples have been legal in Austria since the beginning of 2010. District and municipal authorities are responsible for registration, which grants same-sex partners the same status as married couples in a number of important areas, including pension law, duties of assistance, and maintenance obligations. Since 2013 registered partners may adopt the stepchildren of the other partner, but the joint adoption of a child and artificial insemination are not yet permitted.

Divorce

The right to divorce was first introduced in 1938 with the passage of the German Matrimonial Act (Deutsches Ehe-Gesetz - see marriage above).

In 1999 an extensive legal reform included major changes to laws concerning divorce and the financial support of spouses after divorce. The main divorce laws currently in force in Austria are described below (see European Judicial Network – Austria – Divorce):

Conditions for obtaining a divorce. Austrian law recognises three kinds of divorce: divorce on the grounds of fault, divorce following separation for a period of at least three years, and divorce by mutual consent. A spouse can sue for divorce if the marriage has irretrievably broken down as the result of a serious marital fault or dishonourable or immoral conduct on the part of the other partner, such that the restoration of a relationship equivalent to marriage cannot be expected. If the spouses have not cohabited for a period of three years, either spouse may petition for divorce on the grounds of the irretrievable breakdown of the marriage. The spouses may jointly petition for divorce if the spouses’ relationship has been in abeyance for a period of at least six months, they both admit that the marriage has broken down irretrievably, and they have agreed to divorce.

Reasons for divorce. The essential reason for divorce is the irretrievable breakdown of the marriage. Such a breakdown may be the result of a serious marital fault on the part of either partner, especially if one spouse has been unfaithful or has inflicted physical violence or serious emotional suffering on the other. The other spouse may petition for divorce even if the behaviour cannot be regarded as a marital fault because it is due to a mental disturbance, but the marriage has nevertheless broken down to the extent that the restoration of a relationship equivalent to marriage cannot be expected; or if either spouse is mentally ill or suffers from a highly infectious or contagious disease, or a disease which induces revulsion. In all such cases, the spouse who is suing for divorce must provide evidence of the grounds asserted.

Consequences regarding the division of the spouses’ property. In principle, the spouses are free to decide how they wish to divide up their property. This may be done by mutual renunciation, by the division of any property acquired by contract and held in common, or by the transfer of property from one spouse to the other. If the spouses are unable to reach an agreement, either of them may petition the courts to divide certain forms of property in common ownership. Forms of property considered “matrimonial property” and “matrimonial savings” will be subject to division. Like the matrimonial home and household goods, matrimonial property includes anything which was used by both spouses in pursuance of their lifestyle when they were married. Matrimonial savings include any investments which the spouses accumulated while they were living together as husband and wife. Excluded from division are, for example, anything the spouses brought to the marriage or acquired as the result of a death or as a gift from a third party; and anything that was used by only one of the spouses, including in pursuit of his or her occupation. The latter category includes the ownership of a company, unless the shares held were for investment purposes only. The court is responsible for distributing the assets equitably, giving due consideration to all of the relevant circumstances, and in particular to the significance and the size of each spouse’s contribution towards the acquisition of the matrimonial property and the accumulation of matrimonial savings, as well as to the welfare of the children. Payment of maintenance, earning a living, housekeeping, the care and upbringing of mutual children, and any other matrimonial assistance are regarded as contributions.

Consequences for the spouses’ minor children. Since an amendment to the law relating to children came into force on 1 July 2001, parents have had extensive freedom to make their own custody arrangements following separation. In the event of divorce, the joint custody of the minor children of the couple will in principle remain intact, although if they wish to maintain full joint custody as in marriage, the parents must submit an agreement to the courts on the child’s primary place of residence within a reasonable period of time. The courts will approve this arrangement if it reflects the interests of the child. If no arrangement of this kind is produced within a reasonable period of the divorce, or if the current custody arrangement does not reflect the interests of the child, the courts must decide (in the absence of an amicable agreement if necessary involving arbitration) which parent will be granted sole custody. The parents may, however, decide in advance that one of them will have sole custody after the marriage has been dissolved. If the parents share custody, either of them may at any time petition for joint custody to be revoked. The courts may then grant sole custody to one of the parents on the basis of the child’s best interests.

Consequences for spousal maintenance. The spouse who is solely or predominantly responsible for the divorce must provide the other spouse with a level of maintenance appropriate to that spouse’s lifestyle if the latter’s income from assets and earnings from an occupation which he or she might be expected to have under the current circumstances is not sufficient. If both spouses are responsible for the divorce, but neither is predominantly responsible, a spouse who cannot maintain himself or herself may be granted a contribution towards his or her maintenance, if that is equitable with regard to the needs, the assets, and the employment of the other spouse. The obligation to pay a contribution may be subject to a time restriction. In the case of divorce by mutual agreement, spouses are at liberty to agree whether one of them will pay maintenance to the other, or whether they mutually waive any claims to maintenance.

Cohabitation and civil unions

Cohabitation in consensual unions is a social development to which lawmakers have been forced to respond, as more than 50% of first births are now out of wedlock.

Although the rights and duties of people living in non-marital consensual unions cannot be regulated as directly as the rights and duties of married couples, a long-lasting process of adapting the rights and duties within marriage to consensual unions started in the 1970s, and is on-going. While cohabitation is still not recognised under the law as a civil union comparable to marriage, nearly all of the essential rights and duties of spouses have been transferred to partners in consensual unions as well (Deixler-Hübner 1999, p234 ff).

In 1970, children conceived out of wedlock were granted the same claims to maintenance as children conceived within wedlock. Following some minor changes, a broad reform of inheritance law took place in 1989. Since then, children born within and out of wedlock have been equally entitled to inheritance. The next, wider step towards equalisation came in 2006, when an effort was made to provide a legal definition for consensual unions: “A consensual union is a longer-term partnership of two cohabiting persons who show solidarity within an economic union. The short-term intended absence of one partner does not end the consensual union (immediately). A consensual union may not be established between persons who are close relatives.” But this definition went too far, and was not approved by parliament. Although parts of this legal definition were adopted in 2008, the traditional family model—i.e., a married couple with their biological children—still dominates family legislation. The rights of spouses in tenancy and inheritance law have, at least, been largely equalised. In addition, some forms of palimony (Unterhalt für den Lebensgefährten) have been established.